Post & Telecommunication v Motor Vehicles Insurance (PNG) Trust [2003] PGNC 30; N2479 (17 October 2003)

N2479

PAPUA NEW GUINEA
[In the National Court of Justice]

BETWEEN

POST & TELECOMMUNICATION
-Plaintiff -

AND:

MOTOR VEHICLES INSURANCE (PNG) TRUST
-Defendant -

WAIGANI: GAVARA – NANU, J
2003: 28th July, & 17th October

PRACTICE & PROCEDURE - Workers’ Compensation Act, Chapter No. 179, s. 86 (2) (d) - Indemnity by third party – Section 86 (2) (d) of the Workers’ Compensation Act is not self executing – Plaintiff claiming indemnity against the third party under s. 86 (2) (d) of the Workers’ Compensation Act has the onus to prove claim – Where Motor Vehicles Insurance (PNG) Trust is the third party, the notice required under s. 54 (6) of the Motor Vehicle (Third Party Insurance) Act, is a pre-requisite to the claim against the Trust being competent – Invocation of s. 86 (2) (d) of the Workers’ Compensation Act is not as a matter of course where claim for indemnity is denied by the third party.

Cases cited:
Banz Kofi Fektori Pty Ltd -v- Raymond Simon Apa - N2374.
Motor Vehicles Insurance (PNG) Trust -v- Job Builders Pty Ltd [1993] PNGLR 272.

Counsel:
Ms Dawidi for the plaintiff.
Ms Thompson for the defendant.

GAVARA-NANU J: The plaintiff is claiming indemnity by the defendant for the amount of K 12,665.00 which it says it paid to one of its former workers namely, Wasime Kombene for the injuries he allegedly suffered. The plaintiff says, the payment was made under the Workers’ Compensation Act, Chapter No. 179.

The plaintiff’s case.

The plaintiff claims that on 19th February, 1993, Mr Wasime Kombene was knocked down from the back by a Mazda utility registration No. ZPT 693, as that truck, which appears to have been owned by the plaintiff rolled backward on the road leading to the Gerehu Earth Station. As a result, Mr Kombene is claimed to have sustained serious injuries to his left leg resulting in a 40 % functional loss of the use of the leg and 20 % loss of the efficient use of his whole body.

The plaintiff claims that at all material times the vehicle was insured under the Motor Vehicles (Third Party Insurance) Act, Chapter No. 295, and further claims that the accident happened because of the negligence of the driver of the truck.

Mr Kombene pursuant to his rights under the Workers’ Compensation Act, is alleged to have made a claim against the plaintiff as his employer, for which the plaintiff says it paid K 12,665.00 in compensation to Mr Kombene. The plaintiff says the payment was made pursuant to the respective consent awards made by the Workers’ Compensation Tribunal on 20th October, 1993, and 12th September, 1995.

The plaintiff claims that the defendant being a third party within the meaning of s. 86 of the Workers’ Compensation Act, is obliged under s. 86 (2) (d) of the Act, to indemnify the plaintiff against the K12,665.00, it says it paid to Mr Kombene.

In the alternative, the plaintiff claims assessed damages which it says the defendant is or may have been liable to Mr Kombene.

Thus, the plaintiff claims that pursuant to the plaintiff’s right of indemnity, the defendant is obliged to pay the plaintiff the sum of K 12, 665.00 which it says it paid to Mr Kombene as special damages or alternatively, such other amount in assessed general damages.

The plaintiff also claims that it has given notice of its claims against the defendant within the required period of six months from the date of the accident, namely, on or before 18th August, 1993, as required under s. 54 (6) of the Motor Vehicles (Third Party Insurance) Act.

The defendant’s Defence.

The defendant has in the Defence filed on 10th May, 1996, denied all the claims made by the plaintiff; including the denial that the plaintiff gave notice as required under s. 54(6) of the Motor Vehicles (Third Party Insurance) Act.

General comments.

The writ was issued on 16th April, 1996. Therefore this action is now over seven years old from the date of the issue of the writ, and over ten years old since the date of the accident.

It is noted that the notice to set down for trial signed by the lawyers for both parties was filed on 22nd September, 1997. But it was not until 11th July, 2003, that the matter was set down for trial.

In the affidavit sworn by Mr Kassman of Kassman Lawyers, on 25th July, 2003, Mr Kassman says that, as of that date, his firm had not located the witnesses for the plaintiff and as a result, he asked that the case be put back in the Call Over list. And if by the following month, the plaintiff was unable to locate its witnesses then, his firm would recommend to the plaintiff that the matter be discontinued.

On 28th July, 2003, at the trial of this matter, Ms Dawidi advised the Court that they were not in the position to proceed with the matter and asked for an adjournment. The reason given was that the plaintiff’s witnesses were not available as they could not be located. Ms Thompson objected to any adjournment. I ruled in favour of Ms Thomspon, and noted that from what I was told by Ms Dawidi, the witnesses for the plaintiff had left employment of the plaintiff some 5 years ago and their locations are unknown. I was told that they maybe somewhere in the Eastern Highlands but for the last 5 years, the plaintiff has had no success in getting in touch with them.

On the basis that it is most unlikely that the plaintiff will ever locate its witnesses, I ruled that the adjournment would serve no purpose and it would be an abuse of process and upheld Ms Thompson’s objection. On that basis, Ms Dawidi informed the Court that she would make submissions only on law.

Submissions.

Ms Dawidi submitted that calling of evidence was not necessary for the plaintiff because the claim is for indemnity under s. 86 (2) (d) of the Workers’ Compensation Act.

Ms Dawidi argued that the plaintiff is entitled to be indemnified as a matter of course by the defendant under s. 86 (2) (d) of the Workers’ Compensation Act for the money it paid to Mr Kombene.

The plaintiff also claims that the notice under s. 54 (6) of the Motor Vehicles Insurance Act was duly given to the defendant. Therefore its claims are valid.

It was submitted by Ms Dawidi that, what is important for the plaintiff is that Mr Kombene was paid K12,665.00 in compensation by the plaintiff. And all that is required is for the plaintiff to invoke s.86 (2) (d) of the Workers’ Compensation Act, for the defendant to indemnify it for the K12,665.00, it paid to Mr Kombene. The essence of Ms Dawidi’s submission is that the plaintiff having paid K12,665.00 to Mr Kombene, s. 86 (2) (d) is now self executing and therefore it can be invoked by the plaintiff as a matter of course.

Ms Thompson argued that the plaintiff’s claims should all be dismissed because it still had the onus to prove its claims, but it failed to do that by not calling evidence in support of its claims.

Reasons for decision

Ms Dawidi relied on s. 86(2) (d) of the Workers’ Compensation Act, and asked the Court to find in favour of the plaintiff and order the defendant to indemnify the plaintiff for the K12,665.00, it allegedly paid to Mr Kombene.

It is trite law that, whether the claim is for special or general damages, in either case, the plaintiff has to prove its claims. Here, it has not called or adduced any evidence to substantiate its claims. That is fatal to its case.

The denial by the defendant of all of plaintiff’s claims, means, that the plaintiff had to prove all its claims.

In respect of the claim for special damages, I said in the case of Banz Kofi Fektori Pty Ltd -v- Raymond Simon Apa - N2374, that such claims must not only be specifically pleaded but also be strictly proved. This is because special damages being exceptional in their character, do not follow in the ordinary course and thus cannot be inferred in law. The plaintiff therefore had to call evidence to strictly prove the special damages viz. the K12,665.00 before it can invoke s. 86 (2) (d) of the Workers’ Compensation Act. Section 86 (2) (d) is not self executing and therefore it cannot be invoked as a matter of course by the plaintiff; especially where the defendant has denied the plaintiff’s claims. The plaintiff has the onus to produce evidence of the payment it says it made to Kombene, to show that it did pay the K12665.00 to Mr Kombene. Without such proof, there are big gaps in the plaintiff’s case.

I do not consider producing evidence of the payment it says it made to Mr Kombene to be beyond the plaintiff because, it can in my view easily obtain evidence of the payment, if any, from Mr Kombene’s personnel file. The plaintiff is an established corporation and should have records of its financial transactions. This evidence can be produced through its records clerk or someone having custody of the records of its financial transactions. The evidence is vital to the plaintiff’s case.

And in respect of the claim for general damages, by the very nature of the claim, the plaintiff had to prove its claims by calling evidence. This would enable the Court to assess the damages for the plaintiff, if any. Here, without such evidence, the Court is not in a position to assess any damages which the plaintiff maybe entitled to claim. The Court cannot speculate.

What I am stating here is in my view consistent with what was said by the Supreme Court in the case of Motor Vehicles Insurance (PNG) Trust -v- Job Builders Pty Ltd (1993) PNGLR 272. The Supreme Court in commenting on Damages and Interests, at pages 280 and 281 said:

"In a sense that proceedings for indemnity are proceedings for reimbursement, there may not be any dispute. But the party is entitled to know what the reimbursements are about. The party claiming indemnity must show the details of the award made to each defendant and the basis of assessment which may be shown in various schedules under the relevant Workers’ Compensation Act. Also the Trust maybe interested to know what reductions, if any, might have been made and maybe relevant for consideration under the general policy of Workers’ Compensation.

Further, it is the accepted practice that the claim for liability and the claim for damages are distinct parts of a case and, if there is a dispute on damages, evidence must be produced to support the claim. Apparently, the dispute by the appellant extended to the extent of the indemnity. Evidence was therefore necessary to be called in this respect".

The other significant denial made by the defendant is that the notice under s. 54 (6) of the Motor Vehicles Insurance Trust Act, was not given by the plaintiff. With such denial by the defendant, the plaintiff was required to prove upon evidence that it did give such notice to the defendant. The giving of notice under s. 54 (6) is a pre-requisite to a claim made against the Trust being competent. Therefore the plaintiff must prove that the notice was given as required by the section. In this case the plaintiff has failed to do that.

The requirement or the liability imposed on the third party to indemnify the employer against the compensation the employer paid to the worker under s. 86 (2) (d) of the Workers’ Compensation Act, is not automatic when liability is denied. Thus unless liability is admitted by the third party, the employer, still has the onus to prove liability against the third party, before s. 86 (2) (d) of the Act, can be invoked by the employer against that third party.

For these reasons, the plaintiff’s claims are dismissed.

The plaintiff will pay the defendant’s costs.

Lawyer for the plaintiff : Kassman Lawyers
Lawyer for the defendant : White Young & Williams